K v Police HC Whangarei CRI 2006-488-23

[2006] NZHC 1156

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2006-488-023

K

Appellant

v

THE POLICE

Defendant

Hearing:         7 September 2006

Appearances: K G Johnson for appellant

B M O’Connor for the respondent

Judgment:      2 October 2006

JUDGMENT OF ALLAN J

Solicitors:

K G Johnson, [email protected]

Crown Solicitor, Whangarei

K V  POLICE HC WHA CRI 2006-488-023  2 October 2006

[1]      On 1 March 2006, after a defended hearing, the appellant was convicted in the Whangarei District Court on charges of assault with a blunt instrument, reckless driving and failing to stop to ascertain injury.

[2]      On 19 April 2006, the appellant was sentenced in the Auckland District Court to 18 months supervision on the assault charge.    As  special  conditions  he  was required to attend treatment and counselling as directed by the probation officer.  On all charges he was disqualified from holding or obtaining a driver licence for a period of 20 years.

[3]      The appellant appeals against the length of that period of disqualification, but does not otherwise challenge the sentence imposed upon him.  I noted at the hearing, and counsel agreed, that the period of disqualification of 20 years imposed in respect of the assault charge was in excess of the Court’s jurisdiction.  The combined effect of ss 124 and 125 of the Sentencing Act 2002 is to limit to a maximum period of three years the period of disqualification which a Court is empowered to impose where a person is convicted of an offence punishable by imprisonment, not being an offence under the Transport Act 1962 or the Land Transport Act 1998, where the offence was facilitated by the use of a motor vehicle.

[4]      Here the assault charge was laid pursuant to s 202C(a) of the Crimes Act

1961.    Accordingly,  on  that  charge the  available  period  of  disqualification  was limited to three years.  On that ground alone it is necessary to allow the appeal, but the point is of no practical effect because the learned District Court Judge undoubtedly had jurisdiction to impose a 20  year disqualification period on the remaining two charges.

[5]      Mr Johnson nevertheless submits that the period of disqualification imposed here very significantly exceeded the disqualification period that was appropriate in all the circumstances.

Factual background

[6]      The circumstances are unusual.   At  about  5.50  pm  on  24  October  2005 (Labour Day) the appellant was driving south on State Highway One near Waipu in Northland.  Traffic was very heavy.  Two marked police patrol cars were stationary on the left shoulder of the highway with their lights flashing.  Just as both officers were about to step out of their vehicles, the appellant caused his car to veer to the left, so that it was driving directly at the two patrol cars.  The appellant’s vehicle hit the trailing edge of the driver’s door of the front patrol car, that door being slightly ajar.

[7]      The evidence from the police officers was to the effect that the appellant’s vehicle had been travelling at 70-80 kph just prior to the accident, and that he passed within about 15 cm of the rear patrol car, before colliding with the driver’s door of the front car.  There was moderately extensive damage to the driver’s door of the police car.  The appellant did not stop.  He proceeded south at 60-70 kph and was apprehended only following a chase by the police officers.

[8]      Naturally enough, the officers concerned were shocked and traumatised by the incident.  The Judge accepted their evidence that the appellant had deliberately driven his car in such a fashion as either to narrowly miss the patrol cars, or alternatively to collide with them.

[9]      In order to place that finding in its proper context, it is necessary to discuss the appellant himself, and his history.  He is now 49 years of age.  He is married with two adult children.  In 1995 he suffered a significant brain injury in a motor vehicle accident.  Prior to that time he had not been unknown to the police, but much of his offending was of a relatively minor character.   The injuries sustained in the 1995 accident had a number of adverse effects upon him.  His memory, concentration and flexibility of thought were all detrimentally affected.  He is easily fatigued and there are other physical problems which it is not necessary to detail, except to note he suffers from regular headaches and his sight is not what it was.

[10]   The sentencing Judge had before him a number of reports from health professionals.  The appellant has been under their care ever since the injury occurred. I note he was accompanied to his interview with the probation officer, not only by his wife but also by a representative of the Brain Injury Trust.  The appellant and his wife occupy a rural property near Maungatoroto.   He is able there to undertake a range of activities, but is unable to undertake meaningful paid employment, or anything that requires long term concentration and structure.   Perhaps the most helpful extract from the health assessors’ reports is from the very long assessment report dated 29 March 2006 of Ms Karen Hogg, a neuro-psychologist.  She says:

The most damaging effects of the injury appear to relate to the personality changes that have occurred following injury.  This has been both an ongoing difficulty for his family and relates to behavioural difficulties such as impulsiveness/inappropriate in responses to others, inability to think through consequences of his actions, rigidity of thought processes relating to specific issues,  inability  to  consider  the  perspective  of  others  as  well  as  self regulation of his mood and behaviour.   Mr K   has undergone a severe decline in abstract reasoning with evidence of severe concreteness of thought and a rigid style of thinking.  He does not have the ability to think flexibly or consider others’ point of view.   Under stressful situations such behaviour further deteriorates and is likely to be accompanied by anger and verbal aggression.  Whilst he describes himself as fairly pedantic and ‘precocious’ pre-injury, with some descriptions of pre-morbid dogmatic behaviours, it is likely that the injury has exacerbated such personality traits.   Certainly reduced emotional stability as well as having few independent coping strategies to deal with such issues and traits both currently and pre-morbidly do not help.  On the whole such personality issues tend to reflect frontal lobe impairments and executive dysfunction (supported by cognitive testing) and are likely to have resulted from his severe brain injury.

Over the years such changes and behaviours have incurred conflicts within his family and with the police and more recently have led to the possibility of a prison sentence.  In situations of stress, Mr K  ’s ability to be logical and rational is further reduced.   His family have had professional help to assist  them with  managing  Mr  K  ’s  behavioural  difficulties  following injury, ie manipulating the environment so that he is less likely to become overloaded,  fatigued  and  irritable.    Such  strategies  have  had  a  positive impact on his irritability and verbally aggressive behaviour at home but clearly it is difficult to modify his behaviour to the same extent outside the home.  When faced with such anger and irrational behaviour it is difficult for the general public to understand that this may be related to his severe head injury.

[11]     Ms Hogg expresses the view that results of successive assessments of the appellant have been consistent for some time, and the likelihood is that he has sustained  irreversible damage to  cognitive  and  personality  functioning,  resulting from brain injury.

[12]     The reports do not suggest that the appellant’s condition is deteriorating.  By the  same  token  it  appears  that  there  is  little  likelihood  of  any  significant improvement.

[13]     A central feature of this case is the appellant’s uncompromising antipathy towards the police.  That seems to have had its genesis in an incident which occurred in October 1999 when he declined, at least initially, to give his personal details to a police officer.   Matters escalated to the point where about a dozen officers were involved in the course of subduing him.  He spent some days in prison, and says he suffered minor injuries in the incident.  He had committed no criminal offence.  For reasons which remain unclear a situation which was at least initially routine became a major incident.  I note a reference in the probation report to an explanation by the appellant’s wife to the effect that although the appellant speaks of his “hatred” for the police, she believes he is referring rather to a lack of respect for them in the light of what happened to him some years ago.

[14]     There were subsequent incidents in which the appellant felt he was being hounded by the police.  There were convictions in 2000 and 2001 for failing to give his name and address on demand (and in the latter case for resisting the police). There  was  a  conviction  in  October  2002  for  failing  to  stop  when  followed  by red/blue flashing lights.

[15]     In April 2004 the appellant was convicted of dangerous driving, fined and disqualified from holding a driver licence for one month.  The circumstances of that offending largely mirrored the present case.  The evidence was that he had driven his vehicle within centimetres of a police officer, who was badly shaken by the incident. The police believe the present offending to be a further reflection of the appellant’s antisocial attitude towards the police.  For his part, the appellant says of the present case that he was simply ensuring he kept his vehicle as close as practicable to the left hand side of the road, and the accident occurred because the police officer chose to open the driver’s door of his vehicle at the wrong time.

[16]     The emotional harm report prepared in connection with sentencing refers to the concern of the officers involved, who believe that the appellant is engaged in

long-term confrontation with the police, detect no remorse or attitudinal change, and believe that strong measures need to be taken against the appellant to safeguard members of the police.

[17]     A reading of the material on the file suggests that the concern of the police is not  ill-founded.    There  is  no  suggestion  of  regret  on  the  appellant’s  part.    He expresses a lack of respect for the police as a group of people, but maintains that he was not to blame for the incident and had no intention of deliberately harming any police officer.

[18]     It needs to be recorded that largely by reason of his brain injury the appellant is  given  to  expressing  himself  in  loud  and  forceful  terms,  and  in  a  somewhat dogmatic fashion, so his views about the police and the way they have treated him over the years, are expressed in somewhat extreme terms.

[19]     In the somewhat unusual circumstances of this case, the sentencing Judge was placed in an uncommon situation.  He coped with it, if I may say so, with a good deal of sympathy and understanding.   He took the view that the case called for rehabilitation  rather  than  punishment;  so  he  declined  to  impose  the  custodial sentence  which  might  well  have  been  open  to  him  given  the  severity  of  this offending, or a financial penalty which would have been likely to have impacted upon the appellant’s wife as much as anyone.   Nor did he impose a sentence of community work, given the difficulties the appellant would have encountered in the course of serving that sentence.  Rather, he tailored the sentence to what he saw as being the peculiar needs of the appellant, and the particular circumstances of the offending.

[20]     In  imposing  a  sentence  of  18  months  supervision,  he   identified   an opportunity to help the appellant to help himself to some extent.   In imposing a special condition requiring the appellant to comply with any counselling directions of the probation officer, the Judge expressly noted that the work the probation officer could do would be additional to that of those already assisting the appellant, particularly the Brain Injury Trust.  The Judge referred also to the possibility that the

probation officer might be able to serve as a bridge between the appellant and the police, and that over time a reconciliation could perhaps be effected between them.

[21]     But the Judge felt it was necessary in addition to protect the community, and in particular the police, from what he regarded as the appellant’s “morbid psychological condition where he wishes to do harm to police officers”.  The Judge saw it as his duty to stop the appellant from further offending “at all costs”. Accordingly, he imposed a period of disqualification of 20 years, a period of time chosen he said:

… because it is my firm view that Mr K   is not safe behind the wheel of a motor vehicle while he has these thoughts.  His state is deteriorating and in my view he is not fit to hold a driver’s licence.   It is designed to protect Enforcement Officers from repeat attempts by Mr K   to carry out his confused and deceived wishes.

[22]     I pause to note that there seems to be little, if any, evidence to suggest that the appellant’s state is deteriorating.  By the same token there is no suggestion of any significant improvement.

[23]     There is no doubt the Judge was entitled to take into account the need to protect the police.  The question on this appeal is whether, giving that consideration full weight, disqualification for a period of 20 years was nevertheless manifestly excessive.

Sentencing principles and authorities

[24]     Section 80 of the Land Transport Act 1998 provides:

80       General penalty of disqualification may be imposed if offence involves road safety

(1)     If a person is convicted of an offence against this Act, and the court is satisfied that the offence relates to road safety, the court may order that the person be disqualified from holding or obtaining a driver licence for such period as the court thinks fit.

(2)     The power conferred by subsection (1) is in addition to, and does not limit, any other powers of the court.

[25]     There is therefore no statutory ceiling to the period of disqualification which a sentencing Judge may impose.  But a review of the authorities suggests that very long periods of disqualification are rare.  Two guiding principles must be borne in mind.  First, it is counter-productive to impose very long periods of disqualification which leave little hope for an offender:  Hitchens v The Crown CA380/03 25 March

2004.  Where a very long period of disqualification is imposed there is an increased risk that an offender, losing the ability to see the end of the disqualification period, will simply elect to drive in breach of the order:  Muggeridge v Police HC CHCH CRI 2005-409-137 12 August 2005.

[26]   Second, a period of disqualification, although in itself undoubtedly a punishment, is primarily designed to protect the public:   Husband v Napier City Council [1976] 1 NZLR 317 (CA), McEachen v Police [1995] 2 NZLR 251, and Blackbourn v Police HC PMN CRI 2004-454-55 20 September 2004.

[27]   Mr Johnson referred me to several cases in which lengthy periods of disqualification were imposed.   The circumstances of those cases varied widely. Some were of only limited  assistance.    It  is  perhaps  appropriate to  mention  in particular Smith v Police HC AK CRI 2003-404-225 17 February 2004, in which Miller J upheld a period of five years disqualification on a charge of dangerous driving involving a very high speed police chase for more than 40 km on Auckland motorways and urban streets.   The appellant was also sentenced to a significant period of community work.   He had an appalling list of previous convictions including five for dangerous driving and a number for driving while disqualified.

[28]     I have considered a number of cases involving motor manslaughter, where in addition to a significant sentence of imprisonment, the Court has imposed periods of disqualification.  Those cases include R v Taipari HC ROT CRI 2004-019-4447 21

October  2004,  where  a  disqualification  period  of  six  years  was  imposed;    R  v Johnson HC WHA T031987 9 June 2004, where the disqualification period was four years, and R v Time (2004) 21 CRNZ 31 where the disqualification period was seven years.  In this last case, Potter J specifically tailored the period of disqualification so that there would be a term of three years to serve after expiration of a four year minimum non-parole period.

[29]     These three cases are, of course, significantly more serious than the present case.  Of importance for present purposes however, is the fact that in each instance the sentencing Judge tailored the period of disqualification to fit the facts of the case concerned, and to ensure that the period of disqualification, viewed as part of the overall sentence, was appropriate.

[30]     The need for consistency is an important sentencing principle, underscored by s 8(e) of the Sentencing Act 2002.  Counsel were unable to refer me to any case in which a period of disqualification as high as even 10 years had been imposed.  My own researches have turned up five.  I discuss each in turn.

[31]     Kahn v Police HC AK A89/01 24 July 2001 was an appeal against a sentence of two years imprisonment imposed on a charge of dangerous driving causing death. The appellant was also disqualified from holding or obtaining a driver’s licence for

10 years.  The appellant was 18 years of age with no previous convictions, and had an exemplary background of achievement at school.  He had driven his vehicle on the Southern Motorway at speeds of up to 150 km per hour, weaving in and out of traffic as he went.  He lost control on an easy bend, collided with a concrete barrier and then with another motor vehicle.  The driver of that vehicle was killed and two of his passengers were seriously injured.   At the scene the appellant gave a false account of what had occurred.  He was driving in breach of a restricted licence and his vehicle was unsafe.

[32]     Rodney Hansen J reduced the period of imprisonment to 12 months, and granted leave to apply for home detention.   As to the term of disqualification, he simply said:

Both  counsel  acknowledged  that  they  had  not  previously  encountered  a period of disqualification as high as was imposed in this case.  I accept that the mandatory sentence of disqualification should be substantial but I do not see any real purpose served by a period of disqualification of the length imposed in this case.  In my view, a period of disqualification of three years is appropriate and generally in keeping with sentences imposed in cases of like circumstances.

He accordingly quashed the sentence of 10 years disqualification from driving and substituted a period of three years disqualification.

[33]     Much more recently (and indeed after the hearing of this present appeal) John Hansen  J  dismissed  an  appeal  against  a  period  of  disqualification  of  10  years imposed in respect of a charge of driving with excess blood alcohol causing death: Cashman v Police HC CHCH CRI 2006-409-121 15 September 2006.  The appellant had caused his vehicle to veer across the centre line and had collided with a vehicle in the more distant oncoming lane.  His blood alcohol reading was twice the legal limit.   He had a poor driving record (this was his fourth conviction for a blood alcohol offence) and little apparent insight into the gravity of his offending.  He was sentenced in addition to three years imprisonment and directed to make extensive reparation.   The Judge agreed with the sentencing Judge who had said that the appellant was a “real and present danger” on the road.

[34]     The  other  three  cases  are  significantly  older.    In  Tahuhu  v  Ministry  of Transport HC CHCH M549/84 2 November 1984, the appellant had been sentenced to 18 months imprisonment and 10 years disqualification from driving on three charges of disqualified driving, and one charge of driving with excess blood alcohol. At 24 years of age he had no fewer than nine previous convictions for driving while disqualified  and  three   for  alcohol  related  driving  offences.     He  had   been continuously disqualified from driving for some 5½ years prior to the High Court hearing, and had served at least two substantial earlier sentences of imprisonment in respect of his previous disqualified driving.

[35]     The District Court Judge took the view that the appellant was an incorrigible offender and a danger to the public.  In the High Court, Quilliam J agreed.  While noting that very long periods of disqualification are generally self-defeating, in that they leave the offender with no immediate hope of being able to drive again and so encourage him to drive anyway, the Judge said that the appellant represented an undoubted danger to the public by reason of his alcohol abuse and his continuing determination to drive.  He therefore dismissed the appeal, noting that the appellant was free to apply at any time for removal of the disqualification, if he could show that the time had arrived when he could safely be allowed to drive again.  The Judge observed that if that  occurred,  such  an  application  would  be  given  sympathetic consideration.

[36]     In  Northcott v Police HC HAM AP131/92 14 December 1992, the appellant had been convicted on two charges of causing death by careless use of a motor vehicle.  He had driven his car through a compulsory stop sign on an approach road, crossing a state highway into the path of an on-coming vehicle.  Two occupants of that vehicle were killed.   The appellant was 77 years of age and until then had a blameless record.  The District Court Judge imposed a fine of $2000 and directed that it be paid to the next of kin of the deceased.  He disqualified the appellant from driving for 15 years.

[37]     Doogue  J  noted  that  the  period  of  disqualification  was  longer  than  was normally the case “by a considerable margin”, but he said that the District Court Judge was justifiably concerned to strike a balance between understandable feelings of outrage on the part of members of the deceased’s family on the one hand, and the particular circumstances of the appellant on the other.  Doogue J observed that the sentencing Judge had adopted a merciful attitude in respect of the principal penalty by restricting that to a fine, but he had properly imposed such a long period of disqualification in the interests of the safety of the community.

[38]     The practical effect of the long period of disqualification was that, at 77 years of age, the appellant would not drive again, unless he could successfully apply for his licence to be restored to him.  The Judge regarded the case as very serious;  the appellant had either not seen or had ignored the warning signs and notices approaching the intersection.   He held that the District Court Judge was right to impose a limited primary penalty on the one hand, but to impose a very long period of disqualification on the other.   From a reading of the appellate judgment, the proper inference is that the appellant, at 77 years of age, and in the light of the circumstances of the accident, was regarded as an on-going danger to the public.

[39]     The final case, and perhaps the most helpful of all, is Mischewski v Police HC HAM AP73/86 2 July 1986.  There, the appellant had pleaded guilty to a charge of careless use of a motor vehicle while under the influence of drink or drugs.  He was sentenced to six months periodic detention and disqualified from driving for a period of 10 years.  The appellant had lost control of his vehicle, which rolled into the ditch.  Three of his passengers were injured.

[40]     The appellant was 46 years of age, had no previous driving convictions and was on an invalid’s benefit.   He suffered from a variety of medical conditions, including a susceptibility to blackouts, for which he was on medication at the time of the offence.

[41]     Barker J agreed with the District Court Judge who had expressed the view that the appellant, with that history of blackouts, was a menace on the roads. However, Barker J noted that a period of disqualification must be seen as a punishment, and a period as lengthy as 10 years exceeded what was a proper punishment for that offence, bad and all as it was.   The Judge noted dicta of the Court of Appeal to the effect that unduly long periods of  disqualification  were counter-productive because they were likely to give rise to a temptation simply to disobey a Court order.   Barker J noted the existence of a power in s 32 of the Transport Act 1962 for the Secretary for Justice or the police to apply to a District Court to have a driver’s licence suspended on medical grounds.  The Judge observed that if the appellant should not be driving for medical reasons, then it may be appropriate to take steps under that section rather than for an inordinately lengthy period of disqualification to be imposed as a penalty.

[42]     In the result, he allowed the appeal by reducing the period of disqualification to five years.

Discussion

[43]     This is a difficult case.   The Judge approached a complex sentencing task with a great deal of insight.  On any view, he imposed what was a merciful sentence in directing that the appellant be subject to 18 months supervision.  In doing so he was  alive  to  the  need  to  ensure  that  the  totality  of  the  penalty  imposed  was appropriate to the circumstances of the offending and the offender.  To a significant degree, the leniency of the sentence of supervision is counter-balanced by the length of the disqualification term which exceeds that imposed in any case of which I am aware.   In that context it is to be observed that the public protection element of a disqualification order is not to be traded off against other penalties:   McEachan v Police at 254.

[44]     I have concluded that, while the objectives of the sentencing Judge were understandable, the period of disqualification imposed exceeded by a wide margin the available sentencing range.   In my view, the approach adopted by Barker J in Mischewski was right.  A period of disqualification operates as a punishment, albeit a form of punishment designed to protect the public.  The interests of the public must be taken into account in determining the appropriate period, but not to the extent of imposing a penalty which is inconsistent with like cases.

[45]     The offending itself was serious and appears to have arisen by reason of a deliberate act on the part of the appellant.  It is the second such incident involving uniformed police officers.   As a result two police officers were greatly frightened and distressed.  There was moderate damage to the police car door.  But I must not overlook the fact that there was no injury in this case, unlike most of those to which I have earlier referred.

[46]     The appellant has a previous criminal record, although it is not sufficiently extensive or serious to constitute of itself a reason for such an unusually long period of disqualification.  The real issue here is the fact that the appellant has developed an antipathy towards members of the police which appears to be exacerbated by the effects of his brain injury.  There is no suggestion that he is a danger on the roads to the general public.   But there have been two instances in which he has used his motor vehicle as a means of scaring members of the police.   In doing so he has committed serious traffic offences.

[47]     It is important not to confuse two separate issues.   The  first  is  that  the appellant has committed serious offences for which he must receive an appropriate penalty.   Viewed as a punishment, a period of 20 years disqualification is far too long.

[48]     The second issue is the question of the safety of the public, or in this case, the safety of a particular class of the public.   It is not appropriate in my opinion to safeguard the interests of serving members of the police force by imposing what is, in effect, a penalty in excess of the available range.   Rather, the danger that the appellant  might  represent  to  members  of  the  police  at  the  expiration  of  an

appropriate term of disqualification ought to be dealt with by administrative means. Taking an optimistic view of the matter, it is possible that with the assistance of those who support him, including the probation officer, the appellant may be able to achieve some degree of reconciliation with the police.  He might then cease to be a danger at all to them.  A very long period of disqualification does not cater at all for that possibility.

[49]   Alternatively, if, at or near the expiration of an appropriate period of disqualification, the appellant is believed to remain a danger to the police, then there is provision in the legislation for appropriate steps to be taken.  In Mischewski the appropriate course was the making of an application to a District Court under s 32 of the Transport Act 1962.

[50]     The current equivalent regime is to be found in r 80 of the Land Transport (Driver Licensing) Rules 1999.  That empowers the Director of Land Transport to suspend a driver licence for medical reasons where there is a significant risk to public safety. The police may, if they think fit, draw the Director’s attention to the appellant’s circumstances, if his medical condition remains such that he is a continuing danger to police when driving a motor vehicle.

[51]     In my opinion, the appropriate period of disqualification was five years.

Decision

[52]     For these reasons the appeal is allowed.  The order of disqualification from holding or obtaining a driver licence for 20 years is quashed.  I substitute an order that the appellant be disqualified from holding or obtaining a driver licence for five years in respect of the charges of reckless driving and failing to stop, and three years in respect of the charge of assault with a blunt instrument.   The periods of disqualification are to run concurrently.

C J Allan J